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January 12, 2005

SCOTUS speaks: Booker and Fanfan have arrived!!

Not a moment too soon, we finally have an opinion in Booker and Fanfan!! All I know is that it is long and messy, but it appears Blakely applies to the federal guidelines, with Justices Stevens and Breyer both writing parts of the Court's opinion. More soon!

UPDATE: Lyle Denniston at SCOTUSblog has key language from the opinions here, and I hope to have links to the full opinions within the hour.

Here are the links: As promised, here is the link to Justice Stevens' partial opinion for the Court, here is the link to Justice Breyer's partial opinion for the Court, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas' partial dissent, here is the link to Justice Breyers' partial dissent, and here is the link to Justice Stevens' partial dissent. And here is a link to the whole messy ball of wax, including the 6 page syllabus.

I will need some time to digest all 6 opinions (6 opinions!!), which run 118 total pages (118 pages!!). But I should have lots and lots of commentary to follow throughout the day. In the meantime, I hope readers will use the comments to share their views on whether the opinion was worth the wait.

The essence of the holdings: From Stevens' opinion:

We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.

» Booker and Fan Fan Decisions In: Guidelines Survive, But.... from TalkLeft: The Politics of Crime
Update: Here is Judge Stevens' opinion and here is Judge Breyer's opinion (via Sentencing Law and Policy.) ***************** The Supreme Court ruled today in the Booker and Fan Fan cases and the validity of the U.S. Sentencing Guidelines. In Booker... [Read More]

» Booker and Fan Fan Decisions In on Sentencing Guidelines from TalkLeft: The Politics of Crime
Update: There are six written opinions in the cases. Here is Justice Stevens' opinion, and here is Justice Breyer's opinion . Also, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas'... [Read More]

Tracked on Jan 12, 2005 11:18:31 AM

» Booker and Fan Fan Decisions In on Sentencing Guidelines from TalkLeft: The Politics of Crime
Update: There are six written opinions in the cases. Here is Justice Stevens' opinion, and here is Justice Breyer's opinion . Also, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas'... [Read More]

Tracked on Jan 12, 2005 11:20:44 AM

» Booker and Fan Fan Decisions In on Sentencing Guidelines from TalkLeft: The Politics of Crime
Update: There are six written opinions in the cases. Here is Justice Stevens' opinion, and here is Justice Breyer's opinion . Also, here is the link to a partial dissent by Justice Scalia, here is the link to Justice Thomas'... [Read More]

Tracked on Jan 12, 2005 11:29:37 AM

» Booker and Fan Fan Decisions In on Sentencing Guidelines from TalkLeft: The Politics of Crime
The Supreme Court ruled today in the Booker and Fan Fan cases and the validity of the U.S. Sentencing Guidelines. [scroll down for links to opinions] In Booker (the case in which the defendant is represented by TalkLeft's contributing blogger... [Read More]

Tracked on Jan 12, 2005 11:44:40 AM

» Booker and Fan Fan Decisions In on Sentencing Guidelines from TalkLeft: The Politics of Crime
The Supreme Court ruled today in the Booker and Fan Fan cases and the validity of the U.S. Sentencing Guidelines. [scroll down for links to opinions] In Booker (the case in which the defendant is represented by TalkLeft's contributing blogger... [Read More]

Tracked on Jan 12, 2005 2:25:39 PM

Comments

The decision was ready last month but the justices were waiting for you to stop predicting that it would be released.

Posted by: John F. Carr | Jan 12, 2005 10:24:25 AM

Thanks the highest courts that this decision has been posted and all those "girlfriends" can now rest at ease.

Posted by: not a girlfriend of anyone but the guidelines | Jan 12, 2005 10:30:56 AM

Oh my God this is the best present for a wife of an inmate. the wait was definitely worth it and Your Blog was a God Send. Now I hope this is retroactive.

Posted by: Asneth | Jan 12, 2005 10:58:29 AM

Wow, I'm really happy about the decission. My prayers have been answered. Today is my fiance birthday and I know he will be happy to hear this. thank you for keeping us informed.

Posted by: Bonnie | Jan 12, 2005 11:19:13 AM

Does anyone know if this does infact apply retroactively? At least since the lower courts decisions?

Posted by: Justin | Jan 12, 2005 11:24:39 AM

This won't mean much at all to friends and relatives of inmates if it's not retroactive. So hold your celebrations. Any word on whether it is retroactive?

Posted by: Jones | Jan 12, 2005 11:26:27 AM

My quick read of Breyer's additional opinion:

We essentially return to the old "indeterminate" sentencing system for now (he basically implies that Congress should step in and try to re-work things). The guidelines remain as "advisory" only and courts of appeal no longer review sentences de novo but using some type of "reasonableness" standard (which Scalia, in dissent, apparently argues is unworkable).

So for the laypersons out there, your loved ones may--repeat may, depending on whether the plain error doctrine will allow them to raise some of these claims--be entitled to be resentenced based on what the trial judge thinks would have been fair.

One last comment, while I am disappointed for my clients who are in "straddle" positions (conviction before Blakely and pending sentence or on appeal after) because they miss out on a windfall benefit, I'm keeping my fingers crossed that Congress will wait to see how an "advisory" guidelines system works in practice, before they go ahead and try to toughen things up again. If they leave well enough alone, and that's a big if, then maybe this result will be the best in the long run.

Still a very good--no, a great--day for justice.

Posted by: Alex E. | Jan 12, 2005 11:30:19 AM

Unless i'm reading something wrong everyone should hold their excitement... It seems to me that this is a cop out of the greatest order.... Doesn't this simply mean that the judge can (in his sole discretion) impose any sentence he feels appropriate within the guideline range? If this is so, then very few cases will be impacted by this decision... we're back to business as usual... The inconsistencies of sentencing across the country will only increase now since we are leaving people's lives soley in the control of one judge (appointed for life with no oversight over his connections or biases). Doesn't seem like an improvement to me.

Posted by: Barbara Agnew | Jan 12, 2005 11:32:03 AM

Barbara:

There's some truth to what you say. But, I believe that the old system, where some judges were on the extreme on both ends of the spectrum but most were trying to be fair, was preferable to the now-discarded one, in which all judges had to skew their judgments based on hard rules generated from the Central Authority in Washington.

One ray of hope, if judges are too extreme, the "reasonableness" standard on appeal may let the Courts of Appeal correct things. My hunch is that despite that opportunity, they'll basically defer to the discretion of the district courts as they did in the "old days."

Look, no system will ever eliminate disparities. Hopefully, there will be fewer in this scheme remains intact than there were for 17 years under the former mandatory, but now advisory, guidelines.

Posted by: Alex E. | Jan 12, 2005 11:36:26 AM

I agree with Barbara. This is a cop out. I think most judges will just impose guideline sentences. That, it would seem, is likely to always be seen as reasonable. Weak stuff from the Court. The sixth amendment right given to defendants by Blakely is now hollow.

Posted by: Bob Kolstad | Jan 12, 2005 11:42:59 AM

After the quick read through the opinion, I'm with the professors on the dissents. Ouch! I might have to get out my thesaurus! Thank you to all of the blogger powers that be for this and the other websites. Also your comments and directions. Thank you for reserving your own opinions and presenting the info fair and square. I'm also a "relative", but want to remind the righteous few that have dedicated the past year or so to these web sites that we're at least 11 million strong! That's a pretty big base, isn't it? If you multiply the 2.2 million prisoners in the US by at least 5 friends, acquaintances or family (and this is a very low multiplying factor )...then you'll see that if even 10% of us wrote, communicated, or telegramed (?) our representatives - well, we might just be able to influence the way the new application of sentencing guidelines from Congress goes.
best of luck to you and yours!
mary, mother of a prisoner of the drug war{conspiracy to possess and distribute} -
he got 188 months at 22 y.o. after the prosecutor and judge "decided" that his juvenile possession charge applied and ratcheted his levels up twice

Posted by: mary | Jan 12, 2005 11:44:40 AM

The retroactivity piece comes at the end of Breyer's op. Seems to say that it's retroactive for all cases on direct review -- so long as the issue was raised below. Which means not retroactive to very many cases.

The whole thing sounds like a pretty big cop out to me. Everything is the same, but the Guidelines aren't mandatory, just advisory. Ginsburg flipped on the really important question. Why?

Posted by: Ted | Jan 12, 2005 11:47:00 AM

Bob:

I hope you're wrong but we'll have to wait and see, as I see Justice Scalia essentially says in his partial dissent. He's afraid that the "reasonableness" or "unreasonableness" standard on review will tend to intimidate district judges into sentencing within the guideline range, although he acknowledges that district courts may get around that by "saying the right things" at sentencings.

From the perspective of those of us in the field, the fact that we have now (I hope not just temporarily) escaped the handcuffs of mandatory "guidelines" will allow most of our judges to impose sentences all think would be fair. It was so disheartening to have sentences mandated that everyone in the courtroom--judge, prosecutor and defense counsel, not to mention defendants and their families--believed harsh and unfair under the guidelines scheme. Now, there will be dramatically less cases in which that will occur.

The practice of compromise in the Supreme Court is no different than how it works in all aspects of our society, especially in the legislative arena. This isn't the perfect solution for those of us (I count myself in the group), who believe harsh sentences are largely driven by political and philosophical beliefs, rather than the search for justice. But, it's a compromise that does substantial good. As a realist, I'm happy about that.

Posted by: Alex E. | Jan 12, 2005 11:55:02 AM

Does anyone see any progress on 'enhancements' here? Seems Judges can't do it anymore.

Posted by: Jason | Jan 12, 2005 11:56:52 AM

Ted:

I don't know if you're a lawyer but I think you're overstating the retroactivity issue a bit. True, Breyer does talk about applying this case to cases on direct appeal (no surprise) and he also mentions that whether those who didn't raise it below will have to satisfy "plain error" standards (also no surprise).

That's not an insurmountable hurdle. Indeed, here in the Second Circuit (I had no occasion to research others), those with pending appeals after Apprendi was issued were able to use the plain-error doctrine to obtain relief on appeal when they hadn't argued it below. While all of this depends on the case, in any case in which the enhancement was on truly disputed facts, plain error may win the day.

The more difficult issue of retroactivity for those whose appeals have been exhausted (or "final") is one I'm not addressing. While there's some room to argue that those sentenced after 2000, when Apprendi came out, may be able to claim retroactivity, those sentenced before that date may have a tougher time. I'd still pursue all avenues for relief immediately, however.

Posted by: Alex E. | Jan 12, 2005 12:05:23 PM

Alex, Can you explain why you think you straddle clients loose out?

Posted by: Jason | Jan 12, 2005 12:07:16 PM

Because if some "mandatory" parts remained and others required jury trials, those who were sentenced partly on what the jury found (or to which they admitted) and partly on what a judge found might have argued that they had to be sentenced based only on the non-judge-found part. In one case I have, that might have made the difference between 12 years and mandatory life. Now, he may be entitled to be resentenced but the judge could exercise his discretion to give life again (although I hope that won't be the case).

So, while they lose the opportunity for this type of windfall, they will still have the opportunity for relief as a matter of judicial discretion. That may be exactly what's needed in many cases.

Posted by: Alex E. | Jan 12, 2005 12:16:07 PM

I'll try to keep the self-congratulatory stuff to a minimum, but I predicted at this link....

....that Justice Stevens would write the principal opinion on whether Blakely applies to the guidelines, as indeed he did.

Nevertheless, in getting Justice Ginsburg to jump ship on the remedy issue, it appears that Justice Breyer has largely salvaged his pet project. In all likelihood, sentencing judges will continue to impose guideline sentences in the majority of cases. On appellate review, the guidelines will most likely be the starting point of the "reasonableness" analysis that Justice Breyer's opinion requires.

Justice Breyer's opinion bears all the hallmarks of judicial legislation, but despite Justice Scalia's predictions of impending calamity, I think this system will basically work. Most cases don't have any enhancements, and a system with advisory guidelines should eliminate many of the more egregious abuses we've heard about. I agree with the suggestion that Congress should leave it alone for a while, and see what's broken before deciding to "fix" it.

For those wondering about retroactivity, Justice Breyer seems to have put a sturdy ring fence around that issue. There isn't going to be a huge sentencing windfall to people who've already gone through the system, unless their appeals remain open and they have preserved the issue.

Posted by: Marc Shepherd | Jan 12, 2005 12:17:01 PM

These decisions will have a profound effect on plea-bargaining as it is practiced in my district (MN). At least under the mandatory system I could make a reasonble estimation of the consequences of a plea when there is agreement with the government about which guidellines apply. Now I'll have to tell my clients that the judge has to be reasonable and that the bargained for factors have little, if any, binding effect on the court. That is, the court could go way beyond the guidelines sentence as long as it's reasonable. What on earth does that mean? And how can a person effectively advise clients now?

Posted by: Bob Kolstad | Jan 12, 2005 12:19:13 PM

But what of the majority of cases, where those who plead guilty to the underlying offense without a jury, and the judge tripled the sentence based on enhancements found only by the judge? Does this need to be remanded for resentencing????? I'm confused. Anyone?

Posted by: bob | Jan 12, 2005 12:20:03 PM

gentlemen and ladies:
what about the application to 2256? i read that you opine "after 2000". So, in combination with "plain error" and this new opinion - would there be application or reference for a 2256 motion?
thank you!
mary

Posted by: mary | Jan 12, 2005 12:23:58 PM

bob:
I think that as long as the issue is preserved remand is appropriate. As long as the appropriate "magic words" are uttered the sentence can be changed or not depending upon what the sentencing judge wants to do. So, there's a shot at a reduction but certainly no guarantee.

Posted by: Bob Kolstad | Jan 12, 2005 12:24:34 PM

I am a criminal defense attorney in the 7th Circuit. I agree the decision on the guidelines was weak, but to the extent judges will actually use the discretion they have been granted I think it will result in less harsh sentences overall. I don't think judges appreciated being relegated to checking the math on PSRs :-)

Of much more importance, in my opinion, is the greater roll for juries, and I'll tell you why. It injects more uncertainty into a case for both sides, and that means the prosecutor, as well. Plea negotiations in federal court were a soul-destroying exercise before Blakely. Rather than making negotiaions more difficult, I think they will actually be more meaningful after this decision. It will be interesting to see how all this plays out in practice.

I know a mail fraud case where the defendent and the federal govt agreed in a plea bargain to put forth the sentence increasing and decreasing facts before a judge.The facts in the plea bargain give the defendant a sentence of 18 months by applying the guidelines.This is a case that has been going on for 5 years. The federal judge has stated several times that there has been "serious deprivation of defendant rights in this case".

My questions:
1.
Will the new decision limit the defendant's exposure to a max of 18-24 months based on the conduct that the defendant agreed to in the plea?

2.
or is the 18-24 mths itself not valid as they were based on the guidelines?

3.
The defendent is not asking for a new sentencing jury. Can the govt ask and get a sentencing jury and if so will that deprive the defendent the right to not having double jeopardy (the govt could rework their faults from the first sentencing before the judge)

4.
Can the defendent put forth new motions before based on what the judge said in open court that there has been "serious deprivation of defendant rights in this case".

5.
If the govt is willing to agree to say a 12-18 mth sentence, is it better to take that?

6.
Or is it better to ask the defendent to take his chance that the judge will give him something lower based on the judge's feelings expressed in open court.

Stewart
Law student

Posted by: Christopher Stewart | Jan 12, 2005 12:46:05 PM

How many more defendants will be tempted to roll the dice now that a below-guidelines sentence is possible? I wonder if Breyer's less disruptive remedy will in fact cause more work for the courts.

Posted by: John F. Carr | Jan 12, 2005 12:48:49 PM

Marc, I think the impact is going to vary from place to place. It honestly couldn't get much worse in the Southern District of Illinois where I work, so I am of the opinion that just about any change is a change for the better. In advising a client, I prefer more options than the certainty of "yeah, you're screwed under the guidelines" :-)

John, I think this makes jury trials more attractive to defendants. On the other hand, if there is now more incentive for the prosecution to negotiate, things might even out.

Posted by: TIm Capps | Jan 12, 2005 1:02:52 PM

Frankly, while I think that Booker wil change the way that the prosecution and defense bar plead cases in the federal system, I don't think that it will result in a great deal of change. The legal community has a large body of collective experience in pleading within a discreationary range and advising clients about the possibilities within that range. Of course, now there will be less certainty than there was a year ago. But the mere fact that there is less certainty does not leave defense counsel unable to advise his client.

Posted by: Brad | Jan 12, 2005 1:05:04 PM

Congrats to Prof. Berman for having this blog cited by Justice Stevens on page 7 (n.4) of his dissent!

I am ready to hire an attorney who is educated on all the Blakely/Booker updates. I understand we are unsure if this applies retroactively, but let's find out. Basically, the case involves a fire arm enhancement after the plea was signed. It was never admitted to being in connection with the crime, and in the PSI it was stated that it was not in relation to the drugs. Enhancing factors not plead guilty to are affected by this new rule, correct? I'm not a lawyer, I don't know much about law, I need a lawyer, because we are READY to try to make something happen and adjust this sentence so my husband can come home on immediate release. Any one ready, willing, and able?
READY

Posted by: READY!! | Jan 12, 2005 2:11:45 PM

I'm a grad student in philosophy and an avid reader of appellate opinions. I'm delighted with todays result, but of course it will take time to process the decision itself.

This is clearly peripheral to the really important stuff, but it interests me anyway: this is the first time I can recall a straightforward Opinion of the Court, agreed by a majority (rather than the Bakke-style mess that sometimes happens), but which is written by two separate justices to address to separate questions (in this case, first the constitutionality of the guidelines, and second, the severability and remedy questions).

Is there precedent for splitting the opinion of the court in this fashion?

Oh, I see I was mistaken in my assumptions; I misread the text and at first thought both parts of the Opinion were agreed by the same majority but this is interestingly not true, with Stevens, Breyer, and Ginsburg being the three to agree to both parts of the Opinion.

Which makes it seem as if the left-wing of the court was the real powerhouse here because of the division among the right-wing.

Posted by: Thomas Bushnell, BSG | Jan 12, 2005 2:19:08 PM

Ok, I'm dumb and clearly not reading well today. The only justice to join both opinions is Ginsburg, presumably giving her the power, at least especially the power over the remedy portion.

So the remedy option that Ginsburg chose is the one preferred by the anti-Blakely minority. Does this mean that the remedy is crafted in such a way as to make things as close as possible to what the anti-Blakely minority would rather have seen? What sort of remedy would the anti-Blakely minority have preferred if they didn't have to get Ginsburg on board?

O'Connor especially seemed to be exercised about the disruption that Blakely could cause, and parts of Breyer's remedy opinion seem to be designed to minimize disruption, for example, by apparently precluding retroactivity of the new rule to habeas review (which seems indefensible to me).

Posted by: Thomas Bushnell, BSG | Jan 12, 2005 2:27:06 PM

PLEASE! someone explain this "retroactive?" and when will that be known? more waiting? I thought it was time for celebration. I am an aunt of a 23 yr. old inmate who certainly didn't deserve an 11 yr. sentence at age 21. 1st time offender!

Posted by: Becky | Jan 12, 2005 6:44:00 PM

I never really thought I'd be a lover of the law, but when your family is thrust into it, concern=interest. My father accepted a plea bargain for 10 years and, because of enhancements, he is 7 years into a 32 year sentence. We are hoping that these decisions will help him, but we don't know where to turn for good solid answers. Any advise? Good websites? Offices to call? Printed materials? I know he has an appeal in now, but Booker and Fanfan are not mentioned, only Blakely...will that matter for his appeal?

Posted by: Marley | Jan 12, 2005 8:32:53 PM

After reading the opinion, and even though I have been a practicing defense attorney for five years in federal court, I am quite confused as to what happens with all of the "relevant conduct" facts that the district judges were finding and thus increasing the base offense level. For example, what will now happen in a case where the defendant went to trial and was found guilty on some but not all of the indicted counts and at sentencing, the district judge finds, based upon the preponderance standard that additional, uncharged drugs were involved and sentences the defendant based upon a total drug quantity which includes those uncharged drugs?

Posted by: Michael | Jan 12, 2005 9:00:14 PM

All of what you said will continue to happen. The only difference is that the judge will not be required to impose a sentence within the corresponding range. As before, disputed facts will continue to be resolved by hearing or argument unless the judge says he or she doesn't consider resolution of the dispute to be material to the sentencing determination. As the guidelines are advisory now, I'd expect hearings to resolve these types of factual disputes to become far less frequent.

Posted by: Alex E. | Jan 12, 2005 10:36:03 PM

If a jury finds a defendant not guilty of certain counts, I don't see where the amounts reflected in those counts could be used by the judge to enhance the sentence. I don't see where any factfinding for sentencing can be done by a preponderance standard anymore. Federal prosecutors will plead all desired enhancing facts and a jury will have to find 'em. If the jury doesn't think the gun was involved, then no gun enhancement. If the jury decides there was 1 kilo of meth instead of 5 kilos, then the relevant conduct the judge can consider under the guidelines is 1 kilo, not five. Please someone tell me if I have read this wrong!

Posted by: Tim Capps | Jan 13, 2005 10:39:55 AM

Okay, I'll respond to my own question :-) After re-reading this opinion, I guess I my initial reaction was wrong. All Stevens says is that mandatory guidelines that enhance sentences based on facts not found by a jury are unconstitutional, so the federal guidelines are a problem. So Breyer comes along afterwards and says, "hey, let's just say the judge must consider the guidelines, but they're not mandatory" and the constitutional problem is thereby (magically) resolved.

If that is all this decision did, and the role of the jury is not enhanced, then I'm not so happy about it. (I guess I should have known better.) I am still not sure how a judge can take a fact, e.g. whether or not there was a gun involved, that has not been decided by a jury, then use that to give a greater sentence after "considering" the guidelines and still satisfy Apprendi.

What a disappointment.

Posted by: Tim Capps | Jan 13, 2005 11:58:47 AM

Can anyone shed some light on whether the "any fact necessary to support exceeding the maximum authorized by the facts establshed by a plea of guilty or a jury verdict" (found at the end of J. Stevens' opinion) includes admissions made out-of-court or is it limited to a fact or facts admitted to during the plea proceeding?

Posted by: David G. Huft | Jan 13, 2005 12:14:23 PM

need some help here... part one ruled that judges can't find new facts to go beyond the statutory sentencing limits; but in part two, this problem is solved by making the guidelines "advisory"... Does that mean that if a judge CHOOSES to, he/she can STILL engage in new fact finding to enlarge sentences? ... Or does making it "advisory" merely mean that judges will stay away from Blakely violations...meaning even judges can't avoid juries in these instances... seems to me that Scalia had it right -- it's better to simply require juries for the expanded penalties, rather than make all the guidelines essentially toothles...

Hank

Posted by: Hank Kingsley | Jan 13, 2005 3:43:53 PM

to further my confusion, consider this blurb from the WSJ today:

"The system forced judges to boost sentences based on factors that a jury hadn't ruled on. Now judges are permitted, but not required, to do so..."

huh?? So if required, this practice is UNconstitutional, but if a judge decides on his own to do it, it's perfectly fine?? ... makes no sense...

Hank...

Posted by: Hank Kingsley | Jan 13, 2005 3:52:28 PM

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